Friday, September 12, 2008

The photo above is of Alexander Solzhenitsyn, imprisoned in Russia's gulags for disagreeing with Stalin. In a prior post, I wrote that it is unthinkable that political differences would ever be criminalized in this country. Yet, Obama, Biden, and many of the people most likely to populate an Obama administration have made no secret of their intent to use the police powers of the nation to prosecute the prior administration - with many seeking something akin to war crimes indictments against the Bush regime. How serious is this threat and how much of a danger does it pose to the fabric of our democracy - in today's WSJ, Obama supporter and Harvard Prof. of Law Alan Dershowitz writes to warn Obama and the far left from considering this course of action.

This from Mr. Deshowitz writing in the WSJ:

I don't agree with a lot of the Bush administration's policies in the war on terror, and I plan to vote for Barack Obama and Joe Biden in November. But during a recent campaign rally Mr. Biden gave a wrong-headed, if well-intentioned, answer when asked whether he would "pursue the violations that have been made against our Constitution by the present administration?" This is how he responded: "We will not be stopped from pursuing any criminal offense that's occurred."

After praising Democratically controlled congressional committees for investigating these matters -- "collecting data, subpoenaing records . . . building a file" -- Mr. Biden continued: "If there has been a basis upon which you can pursue someone for a criminal violation, they will be pursued -- not out of vengeance, not out of retribution, [but] out of the need to preserve the notion that no one, no attorney general, no president -- no one is above the law."

Mr. Biden's comments echoed what Mr. Obama had said in April when he pledged that, if elected, he would have his attorney general investigate the actions of his predecessor to distinguish between possible "genuine crimes" and "really bad policies." Mr. Obama moderated his statement by stating that he would not want his first term "consumed by what was perceived on the part of Republicans as a partisan witch hunt," because his administration would have many other problems "we've got to solve."

No reasonable person can disagree with the important principle underlying these statements by the democratic nominees that "no one is above the law." But there is a countervailing principle at play here that is equally important -- namely that the results of an election should not determine who is to be prosecuted. These principles inevitably clash when the winners of a presidential election investigate and prosecute the losers, even if the winners honestly believe that the losers committed "genuine crimes" rather than having pursued merely "bad policies."

. . . We simply cannot trust a politically appointed and partisan attorney general of either party to investigate his political predecessors in a manner that is both fair in fact and in appearance. Nor would the appointment of "independent" or "special" counsel solve the structural problems inherent in our system. These ersatz functionaries bring problems of their own to the criminal justice process, as evidenced by the questionable investigations that targeted President Bill Clinton, vice presidential chief-of-staff Lewis "Scooter" Libby (full disclosure: I consulted with both of them, without fee, about their cases) and others over the past decades.

The real question is whether investigating one's political opponents poses too great a risk of criminalizing policy differences -- especially when these differences are highly emotional and contentious, as they are with regard to Iraq, terrorism and the like. The fear of being criminally prosecuted by one's political adversaries has a chilling effect on creative policy making and implementation.

Noam Chomsky -- the MIT professor of linguistics who has become a sort of guru to hard-left America bashers -- typically overstated his point when he asserted that "if the Nuremberg laws were applied, then every postwar American president would have been hanged." Among the crimes committed by American presidents, according to Mr. Chomsky, were the counterinsurgency campaign in Greece (Truman), the overthrow of the Guatemala's government (Eisenhower), the Bay of Pigs (Kennedy), the Vietnam War (Johnson), the invasion of Cambodia (Nixon), the attack against East Timor (Ford), the increase in Indonesian atrocities (Carter), support for the Israeli invasion of Lebanon (Reagan) and on and on to the current administration.

For those hard-left Democrats who have been pressing their candidates for a promise to prosecute, the list of crimes allegedly committed by the Bush-Cheney administration grows longer and thinner every day.

A politically appointed prosecutor, imbued with partisan zeal, could find technical violations of the criminal law in some of the envelope-pushing policies of virtually every administration. One does not have to be as ruthless as Laventri Beria -- who infamously assured his boss Joseph Stalin "show me the man and I'll find you the crime" -- to come up with "a basis upon which you can pursue someone for a criminal violation" (as Mr. Biden put it).

Even the most well-intentioned and honorable partisans may see "genuine crimes" on the part of their political adversaries, where a more objective prosecutor would see nothing more than "really bad policies." Most "political" crimes are matters of degree, hinging on "mens rea," the mental state of the alleged perpetrator. The criminal law is a blunderbuss, not a scalpel, and in the hands of a partisan prosecutor it is too blunt an instrument to distinguish "genuine crimes" from "really bad policies" on the part of defeated political enemies.

Our constitutional system of checks and balances provides numerous mechanisms for dealing with "really bad policies," even those that may be seen by some as bordering on criminal. Congress may investigate, expose and legislate, but it has no authority to prosecute. In extreme cases, impeachment is available. Prosecution should be reserved for the extremely rare situation where the criminal act and mens rea are so apparent to everyone that no reasonable person would suspect partisanship. The best remedy in other cases is to campaign against and defeat those who supported the bad policies.

That is among the important reasons why I will vote for the Obama-Biden ticket, and that is also why I will try to persuade them, if they win, not to conduct criminal investigations of their defeated opponents.

Both Joe Biden and Obama represent the hard left of their party. Biden, during his tenure as Chairman of the Judiciary Committee, has turned the process for Supreme Court nominees into a partisan circus. Even that, however, does not even show up on the radar in comparison to the proposed course of criminal investigations for political differences. One of Obama's gifts is to make radical left positions seem completely mainstream when he speaks of them. But read between the lines and you see just how far to the left he is. Little is or would be more radical in a democracy than show trials over political differences. It is a measure of the control the radical left has over the Democratic party - and it is an indicator of just how much of a fundamental change an Obama administration poses for America.